Justice and Gender: The Milestones Ahead

Life shrinks or expands according to one's courage.
- Anais Nin

History is clear that sooner or later law must reflect the consensus of society. Equally evident is that over time the consensus of society always moves toward consistency with “objective reality,” with what seems most true in life.

As “women’s nature” appeared no less capable of exercising civil power than that of men, the law bent and reformed itself to provide equal rights for women and men. Society will next gradually absorb the findings of science that sex is a continuous concept. The consensus is already emerging that separate male and female “natures” are, in fact, a myth. People are realizing that male and female physiques are spread across a broad continuum and not separated into tall and strong or short and frail. Indeed, the average difference in size between persons with penises and those with vaginas is about 10 percent, less than almost every other primate, and this small difference is swamped by the differences within each genital group. Social workers are increasingly convinced that the ability of any person to contract for infants, nurture children, and parent kids is far more important than biological reproductive differences. As a consensus on all of these points emerges, the law will again bend and reform itself to eliminate any legal distinction based on sex.

It will take decades to fully indict and quash the apartheid of sex. Certain milestones can be anticipated along the way. The expected battles and final victories are (1) the elimination of sex on marriage applications, (2) the elimination of sex on all other government forms, including birth certificates, and (3) the elimination of sexually segregated public facilities, such as washrooms.

Love and Marriage

One of the biggest battles in gay rights law today is over the right to homosexual marriage. In 1993 courts in the state of Hawaii broke a thirty-year string of judicial decisions adverse to gay marriage when it ordered the state either to offer a compelling reason why it could not permit two women to marry each other or to grant the lesbian couple a marriage license. The court’s reasoning was that the Hawaii State Constitution guaranteed freedom from discrimination on the basis of sex, and that right was being breached by the state’s refusal to marry two persons based on their sex type. The Hawaii decision builds on a trend of other states and municipalities to provide quasi-marital rights, short of actual marriage, to persons of the same avowed sex. The Hawaii decision has been followed with the authorization of sex-blind marriage first in Massachusetts and then, in 2008, in California. As of now, sex-blind marriage has also swept Connecticut, Iowa, Rhode Island, and Vermont.

Typically, state marriage laws provide that marriage licenses will be provided to two persons of different sexes. Based on these laws, marriage applications require that the sex of the person be specified. In a recent case in rural Texas, a judge approved of a marriage between two people with a vagina, because one of them insisted he was a he, albeit with a very small penis. (The Texas judge probably didn’t know he was replaying in variation the famous 1601 French case of Marie/Marin. Marie was sentenced to be either burned alive or strangled to death for the crime of sodomy—in her case, making love to another woman. An accommodating French doctor saved her life by deeming her clitoris a small penis and giving her the male name Marin.) Some attorneys in Texas are now recommending that one of two men who want to marry each other adopt a female identity and claim they have a hypertrophic (very large) clitoris, ectopic (misplaced) ovaries, and vaginal agenesis (unopened vagina). These types of verbal gymnastics should not be necessary to sanctify the love that any two people feel for each other.

For many years marriage applications required not only sex information, but race specifications as well. This was a holdover from miscegenation (anti-interracial marriage) laws, which required that only same-race persons be allowed to marry.



In 1962 a brave interracial couple, the Lovings, wrote a letter to Robert F. Kennedy, then U.S. attorney general, asking for his assistance in getting married in the state of Virginia. The local Virginia court clerk had refused to marry the Lovings because of their mixed race. The couple then went to the District of Columbus to get married and returned home to Virginia to live. Within a couple of weeks they were arrested for violating Virginia’s ban on mixed-race marriages. Upon conviction, which was upheld by the Virginia Supreme Court, their one-year prison sentence was suspended as long as they moved out of the state. The convicting judge declared: “Almighty God created the races white, black, yellow, Malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Bobby Kennedy got the ACLU involved in appealing their conviction to the United States Supreme Court. In 1967, the Court reversed the Lovings’ conviction and unanimously struck down all miscegenation laws as unconstitutionally discriminatory and in violation of the right of Americans to “due process,” that is, to the right to life, liberty, and the pursuit of happiness free of unreasonable state interference. The number of mixed-race marriages has skyrocketed since that time.

At the time of the Lovings’ appeal, more than one-third of American states banned marriages between persons of different races. Just a few years earlier over half the states had banned such marriages. In Guess Who’s Coming to Dinner, the landmark 1967 film about the engagement of an African American doctor (played by Sidney Poitier) to the daughter of San Francisco’s largest newspaper publisher, the doctor and his father, a retired postal worker, have a telling exchange:

“Boy, you don’t know what you’re getting into,” says the father. “Why, in about twenty states you’d be breaking the law and thrown in jail.”

His son responds, “Dad, the problem with you is that you see yourself as a colored man. I see myself as a man.”
A modern-day Guess Who’s Coming to Dinner might again star Sidney Poitier, but this time as the father of a daughter about to be married in Hawaii to another woman:

“Girl, you don’t know what you’re getting into. Why, in about twenty states you’d be breaking the sodomy law and could be thrown in jail.”

To which the daughter might respond, “Dad, the problem with you is that you see me as a female person. I see myself as a person.”

A few years after the Loving decision, another brave couple, Amanda Pederson and Joseph Burton, were offended by the requirement of the District of Columbia that they specify their race on a marriage application. This couple refused to specify their race and resorted to the court system for justice. The District of Columbia of course permitted marriage regardless of race (the Lovings had been married there a decade earlier) but raised all manner of demographic and statistical reasons for its need for race information. The U.S. Supreme Court was not persuaded, and in 1975 the offensive race question was ordered stricken from marriage application forms. The Court noted that asking for information of a discriminatory nature, such as race, on a marriage application was unconstitutional absent a compelling government need for such information.

The foregoing race and marriage cases point the way for litigation in support of sex-blind marriage. It is inevitable that more and more states will decide that the private liberty rights of individuals outweigh any interests of the state in limiting marriage based on the sex of the applicants. As state marriage laws are found sexually discriminatory, and hence unconstitutional, legislatures will need to redraft marriage laws. The typical twenty-first-century marriage law will say that marriage licenses will be issued to two persons who are not already married and are of legal age.

For a while, marriage applications will continue to ask for the sex of the applicants. Then, within the next decade or two, another offended couple like Pederson and Burton will challenge the need for this information. They will point out, as did Pederson and Burton, that sex type, like race, makes no sense to them. They will explain that it is as discriminatory to refuse to marry persons for whom sex type is not a meaningful question that can be answered honestly as it was to refuse marriage based on race or color. Courts will inevitably decree that sex information not be requested on marriage applications.

The sex-blind model provides a lot of new work for lawyers in the area of love and marriage. Each of American’s fifty states and each of the two-hundred-plus countries in the world have their own marriage laws. These battles will have to be fought one by one.

The ideal plaintiffs may be transsexuals who refuse to specify sex on a marriage application, claiming that they are neither male nor female. When the clerk refuses to issue a marriage license, the issue becomes ripe for judicial appeal. The transsexuals will, of course, argue that they are citizens with as much right to marriage, liberty, and the pursuit of happiness as any other person. The transsexual plaintiffs will cite Loving v. Virginia as precedent. Ideally the Court will both order the couples married and strike down the requirement that the sex of an applicant be specified on marriage applications. Such a decision than opens the door to sex-blind marriage.

It is interesting that the paradigm of sexual continuity renders moot the issue of gay marriage morality. Since everyone has a unique sexual identity, there is actually no reality to being either heterosexual (attracted to the opposite sex) or homosexual (attracted to the same sex). We fall in love with persons, not sexes. We are all, in fact, transgendered—with unique sexual identities and capable of falling in love with any other person of unique sexual identity. Most of us naturally follow the prescribed course of declaring ourselves as one of two sex types and then courting persons of either the same or opposite declared sex type. But just as declaring and sticking to one’s race or ancestors’ nationality is beginning to look quaint, the same watershed will come to sex.

Government and Sex

Throughout our lives one or another government agency demands that we declare our sex to be either male or female. This apartheidlike regime begins with birth, continues with school forms, is part of any government assistance or census papers, and concludes with death. As noted above, even in the case of marriage there is no logical basis for forcing people to declare sex when the reality is that people are not either male or female; we are just socialized into maleness or femaleness. Why should any government agency care what the sex of a person is, when the law makes it illegal to discriminate on the basis of sex?

The government’s best answer to its requirements for sex information is its need to collect demographic statistics. But this is an evasive answer, for the government does not need to spend its money differently or decide its policies differentially, based on the sex information that it collects. Government agencies might respond that they need to alert the public to the alarmingly high percentage of welfare recipients that are female or that the law demands that women receive preferential treatment in certain areas, such as in government contract set-asides for women-owned businesses.

Supreme Court justice Ruth Ginsburg earned her greatest fame as a litigator in eliminating military assistance benefits that discriminated in favor of women. Justice Ginsburg realized that all discrimination hurts, including allegedly favorable discrimination. What every population subgroup needs is to be treated as persons, not as demographics.

In the case of Frontiero v. Richardson, Joseph Frontiero was the student spouse of Sharron Frontiero, a U.S. Air Force lieutenant. Federal law provided that female spouses of servicemen were automatically entitled to housing and medical benefits but that male spouses were not. Justice Ginsburg argued that arbitrary governmental classifications by sex were just as odious as those based on race or ethnic origin and that they put women not on a pedestal, but in a cage. She pointed out that for one hundred years the Supreme Court followed a precedent case that could have come out of the Middle Ages:

Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. (Bradwell v. State, 1873)

Ms. Ginsburg urged the Court to take a strong stand against such sexist attitudes and to provide male spouses of soldiers the same benefits as female spouses enjoyed. In 1973 the Supreme Court agreed, striking down the discriminatory benefits law as unconstitutional and disconnecting itself from its one-hundred-year old paternalistic attitude. The same approach should be taken with regard to any government program that gives out benefits on the basis of sex—in the long run, that type of assistance hurts more than it helps.

The government’s other alleged reason for sex information, pure demographics, is handled easily in one of two ways without unduly perpetuating sexual apartheid classifications. First, the government can simply add a third “other” or “transgendered” box to sex questions so that people are not forced to be “male” or “female.” The “other” category is already the fastest-growing racial category in the national census. While the “transgendered” term is not well known now, the experience of the African American community is instructive on how quickly a new identity can spread. Gallup has surveyed African Americans for their preferred identity since 1969. In that year virtually no one identified as African American, but 38 percent identified as Negro, 20 percent as Colored, and the rest as Black or Afro-American. Twenty years later, in 1989, 66 percent identified as Black and 22 percent as African American. Today an almost equal number of persons identify as Black and African American. It is clear that identities can change quickly among millions of people. Transgendered may well start to replace the traditional male/female labels, if given a chance.

A second alternative is for the government to drop the sex question altogether and rely on public opinion polls, media accounts and academic reports of society’s changing sexual demographics. With so much of public affairs, politics, marketing, and social science already dependent on population sampling companies, there seems to be no reason for the government not to use these firms. Indeed, it may very well cost the government less to collect its demographic information privately, in a competitive bid process, than to do so using its own employees and computers.

Birth certificates present a special case of government-mandated sex information. Here the government could also argue that this information must be collected for health/medical reasons. For example, it might be said that children have a developmental reason to be brought up as one sex or the other, or that doctors need to be alerted to sex-differentiated diseases.

These same kinds of arguments were raised for specifying race on birth certificates and were found totally specious. Whether a child is brought up black, white, or race free is a parental option. Neither the parents nor the kids need a birth certificate to tell them what they look like. Similarly, whether a kid is brought up male, female, or sex free should be a parental option, at least until the children express their own gender will. No one needs a birth certificate to tell them what their genitals are. Indeed, hundreds of thousands of transgendered persons vigorously adopt sexual identities clearly different from what is stamped on their certificates of birth.

It is also medically inaccurate to specify sex, as opposed to genitals, on a birth certificate. Sexual identity is not established until three or more years after birth. For thousands of years it was assumed that strict genital dimorphism dictated absolute differences in brain sex—separate male and female natures. We now know that is false. The brain is not even interconnected enough at birth to establish sexual identity, and those interconnections are influenced largely by environmental upbringing plus random genetic variation. So it is as medically wrong to establish sex at birth based on genitals as it would be to establish “white culture” or “black culture” based on birthed skin tone.

The bedrock reason for the government’s insistence on specifying sex at birth is probably to prevent same-sex marriage. But, as noted earlier, this kind of sexual apartheid is crumbling as surely as did the long-lived efforts to prevent different-race marriage. As sex data becomes irrelevant for marriage and found unnecessary for government assistance, there will no longer by any basis to mandate this data on birth certificates.

As with other aspects of government and sex, the debunking of male/female apartheid at birth will likely occur through legal challenge. Plaintiffs are needed who don’t want their kids sex typed at birth. These plaintiffs must be supported by a medico-legal team that is able to prove sex is wide open at birth, sex typing is repressive, and sex typing serves no legitimate government purpose. A court order to the local vital records department to keep sex off the birth certificate would be a significant hole in the edifice of apartheid. Even one such child turns sexual apartheid on its head — passport offices, motor vehicle departments, and marriage bureaus would all have to bend their rules to accommodate this gender pioneer. And if the first gender pioneer is followed by thousands of others, then the edifice of apartheid will not only bend, it will break.

Another legal route for change is to prepare a model gender-free vital records code that eliminates sex typing from all government vital records (birth, marriage, death). Committees of national and international lawyers are working constantly on model laws in many different fields. A model vital records code would be presented to legislative committees as a fairly innocuous means of avoiding inadvertent sex discrimination. At the same time, this model code would automatically eliminate sex typing at birth, the most vital record of all.

The Bathroom Bugaboo

If the law does bend and reform itself to eliminate the legal separation of people into males and females, what will become of sex-separate lavatories? Do not the genitals of a citizenry become a proper interest of the sate when it comes to exercising excretory functions in public buildings? Is not the public restroom, with its separate urinals for men and makeup mirrors for women, proof that the apartheid of sex is necessary?

Questions such as these were also raised when African Americans sought equal rights in the 1950s and 1960s. Ubiquitous “whites only” and “coloreds” signs hung in front of separate restroom facilities throughout much of the South. Many people were enlightened enough to share a bus seat but drew an apartheid line on sharing a toilet seat.

In fact there is no need for sex-separate restrooms, and this can easily be accomplished without violating personal privacy. All that is needed is to remove apartheidlike “male” and “female” signs from the outside and install only closed-door stalls on the inside.

Several quasi-legal objections might be raised to unisex lavatories:

• Persons with penises will be discriminated against by losing access to “quick and dirty” stand-up urinals.
• Persons with vaginas will have to face toilet seats wet with urine from “sloppy shooters” or those too inconsiderate or lazy to lift a toilet seat.
• There will be an increase in restroom rape by placing people of different genitals together in a place where their genitals are exposed.

Starting with the alleged discrimination against persons with penises, this problem can be resolved immediately by placing a certain number of stand-up urinals inside closed-door bathroom stalls. Yet a better solution, however, is to install only sit-down toilets in public lavatories. Each sit-down toilet is usable by all genitalia, whereas stand-up urinals are designed for only one type of genitalia. So, in fact, it is stand-up urinals that are per se discriminatory. As to the extra thirty seconds it takes to drop one’s pants and sit down to pee—this seems a very small price to pay to ensure equal access to all restrooms by all people.

Of course, some persons may be too lazy to sit down to pee, or even to lift a toilet seat, or to aim halfway straight, thus imposing a seat-cleaning or crouching obligation on the next stall occupant. The solution to this problem is education. From childhood we need to train all children that it is civilized to sit down to pee, as part and parcel of a sex-free education. Today we train boys to stand up and pee as a sex discriminator. As every parent knows, the natural progression is from diapers to sit-down urination. Stand-up urination for people with penises is a way to say males are different (and better) in a patriarchal society.

A second possible solution is technology. Visitors to O’Hare Airport will recall that a push-button device on all toilets automatically cleans the toilet seat and dispenses a sanitary seat cover. Simple signs in front of each toilet, reminding the occupant to please sit down, may also be effective.

Restroom rape is a serious problem today, even with sex-separate bathrooms. It is pure speculation as to whether unisex bathrooms would increase restroom rape or decrease it by converting a “women’s space” attractive to rapists into a non-sexed public place. Generally rapists prefer seclusion. The thought that persons of any sex can enter any restroom at any time should discourage sexual violence in restrooms.

Heightened security, such as better night lighting, is one of the best tools to diminish rape. For about the cost of a single modern urinal, each public restroom could also be equipped with a continuous loop camera high above the exit door. This would have the same effect on discouraging restroom crime as when such cameras are installed elsewhere. If we place as much value on a person’s life as we do on a convenience store cash box or an ATM machine, then legislators should mandate automatic video surveillance of public restrooms. Legislation such as the Violence Against women Act (VAWA) sets a valuable precedent for spending federal money on facilities such as better outdoor lighting to enhance public safety.

The “bathroom bugaboo” presents no obstacle to the legal elimination of sexual apartheid. But today the law continues to enforce a separation of the sexes down to the urinal. In 1990 legal secretary Denise Wells was arrested in Texas for using the men’s restroom at a concert instead of waiting in a huge line for the women’s restroom. She was found not guilty by a mixed male/female jury and is now an advocate of “potty parity.” A dozen states mandate this feature in new buildings, ranging up to a required ratio of four to one female-to-male toilets in some California buildings. Laws requiring unisex lavatories on the European model, with adequate security features, would be less expensive to comply with and would also provide much relief to women faced with the indignity of long waits for a basic biological function. Such a change would also offer minimal consideration to dads out on the road with infants. Today the men face the insult of being unable to comfortably change their kids’ diapers in private, while changing areas are often “assumed necessary” in women’s restrooms.

The bathroom bugaboo is a legal problem because, as with race, restroom segregation reinforces social discrimination. It took laws to eliminate “whites only” lavatories. It took laws to mandate handicapped toilets. And it is taking laws to redress inadequate bathroom facilities for women. The best way to redress this harm, and to help cleanse society of sexual apartheid, is to pass laws that mandate secure, reasonably clean, unisex restrooms for all.

The new paradigm of a natural continuum of sexual identity provides a lot of work for lawyers in dismantling the old but omnipresent apartheid of sex. The elimination of sex as a basis for marriage, a label at birth, and a recurring checkbox in life will not come about easily. But the rewards are well worth the effort. Sexual identity lies at the heart of human expression. Eliminating the sexual shackles of today will spawn a revolution of gender creativity. All human beings will be able to live happier, more enriched lives.

Papering a Transhuman

In this chapter we reviewed the successful efforts of the past century to remove race from birth and marriage certificates, as well as the legal challenges involved in replicating that achievement with sex. The coming wave of transhuman persons presents a more fundamental issue: does someone without a human form and without a natal birth have any rights at all? What pathway to citizenship is there for someone with the mind of a human but a purely virtual or artificial body?

A likely scenario over the next few decades is that people will copy every greater portions of their mind into software. These software analogs will work, shop, and communicate on behalf of their flesh masters. The more autonomous and life-like these software analogs are, the more useful they will be, and hence market forces will make them increasing human-like. At about this time some human masters will suffer bodily death, but will claim that they are still alive in the guise of their software analogs. In essence, these transhumans will claim to have had a “mind transplant” to save their life not unlike the heart and kidney transplants that save so many lives. Lawsuits will surely ensue over (i) whether or not a death certificate should be issued, (ii) whether there is an estate, i.e., does the transhuman or its flesh descendants control its property, and (iii) whether the transhuman can get married and if so as which sex since the old body is gone.

There are in fact reasonable “non-formist” ways to determine if a transhuman is really human, and thus deserving of a birth or marriage certificate. For example, psychologists certified to determine whether someone adequately demonstrates consciousness, rationality, empathy and other hallmark human traits could interview transhumans. Should two or more such psychologists agree as to the transhumanist’s humanity, the virtual person should either be permitted to continue the life of their biological original, or, if newly created, be granted a birth certificate and citizenship. It would be silly to ask after the transhuman’s sex as virtual beings are quite transgendered.

There is nothing too unusual about relying upon psychologists to tell us whether someone’s frame of mind is authentic or a fake. They are called upon to do this in many criminal trials, where the dispute is over the defendant’s state of mind. They are also called upon to do this in authorizing surgeons to perform genital-change surgery. In this latter instance the psychologists interview transsexuals to determine whether they are sincere in their mental sense of themselves as another sex. If so, then surgery and new legal documentation under the changed sex is authorized.

Transhumans will want to be documented; there are too many disadvantages to being undocumented. Society will be worried about providing birth certificates and hence citizenship to people without a body. Everyone will look to the historical precedents of recognizing people as persons rather than colored persons, and people as people rather than as gendered people. The logical next step is for some young lady engaged to a virtual transhuman to tell her exasperated father “Dad, the trouble is that you see yourself as a flesh person and I see myself as a person.” Provided that certified psychologists agree that the fiancée is a real person, with the autonomy, rationality and empathy we expect of humans, then sooner or later the Courts are sure to agree.